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KELLEY v. CELEBREZZE

June 8, 1965

Bertha KELLEY, Plaintiff,
v.
Anthony CELEBREZZE, Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: AUGELLI

This is an action brought under Section 205(g) of the Social Security Act (Act), 42 U.S.C.A. § 405(g), to review the final decision of the Secretary of Health, Education and Welfare, denying plaintiff's application for old-age insurance benefits. Defendant has moved for summary judgment.

Plaintiff filed an application for old-age insurance benefits on February 15, 1963. This application was disallowed on the ground that she had insufficient quarters of coverage for fully insured status to be entitled to benefits under Section 202(a) of the Act, 42 U.S.C.A. § 402(a). The disallowance was affirmed on reconsideration and again by the Hearing Examiner after hearing, and the Appeals Council denied her request for review.

 Plaintiff had reported self-employment income of $ 1090.00, $ 1140.00 and $ 1190.00 for the years 1960, 1961 and 1962, respectively. However, she could not furnish the names and addresses of her customers during that period. This income was deleted from her wage record on the ground that she had not established that she was self-employed in a trade or business during these years. After this deletion of income, plaintiff had insufficient quarters of coverage.

 Plaintiff contends that she was self-employed in the catering business, and therefore entitled to quarters of coverage for the period in question since she earned more than $ 400.00 a year and $ 100.00 in each quarter. The Hearing Examiner determined that plaintiff was an employee earning wages for domestic service as a cook in a private home of an employer during the years in issue, and therefore only entitled to quarters of coverage for the calendar quarters in which she was paid $ 50.00 or more by the employer. 42 U.S.C.A. § 409(g)(2). *fn1" He found that plaintiff was entitled to only one such quarter of coverage for $ 50.00 in wages reported by an employer in the first quarter of 1960.

 The issue in this case, put simply, is whether plaintiff was self-employed in the catering business or an employee domestic cook during 1960, 1961 and 1962.

 The record in this case discloses the following on the issue here involved:

 Plaintiff was born in Czechoslovakia on February 6, 1898, and came to the United States at the age of 14 or 15. Except for the periods from 1919 to 1925 and from 1948 to 1952 when she was living with her husband, plaintiff was employed as a domestic in various homes.

 During the years 1960 to 1962, plaintiff worked as a cook for parties in private homes or preparing buffets for religious organizations. Usually from about 20 to 50 guests were involved. She rarely worked for the same family or organization more than once during a three-month period, nor did she earn $ 50.00 or more from a single such family or organization during such period.

 Plaintiff did not maintain a regular place of business, and she was neither listed in the telephone directory as a caterer, nor did she have business cards. She received telephone calls at her home from persons requesting her services, who were regular customers or recommended by such customers. She then discussed the menu with the hostess, and planned the requirements for food, eating utensils, dishes, tables and chairs, and additional domestic help.

 Plaintiff did not generally furnish the food, except for some baking she did at her own home. She recommended places to rent eating utensils, dishes, tables and chairs, but brought her own special pots and pans. She prepared and served the meal at the premises, and received $ 2.00 an hour for her services, or sometimes a flat fee of $ 25.00. She also might supply additional domestic help at $ 1.75 an hour.

 On the day plaintiff filed her application for benefits, she signed a statement, as follows:

 'I have been reporting myself as self-employed for five years. I do catering at parties in private homes and also just make meals for families. I am under the supervision and control of the person whose home I work at. They bring the food, they tell me how they want it prepared, and they supervise everything I do.

 'I have no list of the people I have worked for. I file my tax return on an estimated figure. I have no record of how much I have earned. I work for many people and just could never get any list because there are too many ...


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